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November 29, 2016 Articles

Mentoring and Sponsorship: Retaining Diverse Attorneys in a Commercial Litigation Practice

In many respects, mentoring for the retention of diverse attorneys is the right thing to do

by Wesley R. Payne

Over the past few years, the legal profession appears to have rebounded from the economic downturn and commenced a period of steady growth. As noted in a recent article by IBISWorld, "Law Firms in the US: Market Research Report" (Mar. 2016),top law firms will benefit from higher corporate profits and their clients' entrepreneurial business activities to generate higher profits. Likewise, the Citi Private Bank's Law Firm Group recently released its report on the financial state of the legal industry and noted tepid but steady growth within the profession. Joe Patrice, "Law Firm Growth Continues . . . Slowly," Above the Law, Aug. 15, 2016. The further sign of growth is that many larger firms have begun to raise the compensation levels for their newly hired associates and are openly competing again for candidates.

This renewed competition for new legal talent extends to the best diverse candidates as well. The hiring practice of firms, in particular corporate and commercial litigation departments, over the past several years have made up numerically for the loss of diverse associates experienced during the economic downturn. However, a side effect of the downturn was the curtailing of many firms' diversity programs, which has led to a less than effective commitment or a "leaky diversity pipeline" at the firms. As a result of leaks in the diversity pipeline, retention rates of diverse associates have suffered. As the National Association of Legal Professionals (NALP) found, the leaky diversity pipeline ultimately results in only one in five diverse associates remaining at a law firm for five years. The trend of failure to retain diverse associates must be averted if the firm is to thrive in today's legal economy.

Good news is on the horizon. With the steady growth by firms, there has been a small but noticeable gain in the number of diverse partners and associates at the nation's larger commercial law firms. As observed by M.P. McQueen of the American Lawyer in her May 23, 2016, article, "Diversity Score Card: Minorities Make Small Gains in Big Law," many larger commercial litigation practices realize the need for diversity and the need to shore up the diversity pipeline. As she noted, for many corporate and commercial litigation practices, diversity is not a choice but a "professional imperative" to meet the demands of sophisticated corporate and government clients that require diversity information in their proposal requests and expect diversity in the attorney teams with whom they work.

One of the ways to fix the leaky pipeline is to develop a mentoring program designed to retain diverse associates. As noted by Damaris Hernandez, a newly elected partner at Cravath, Swaine & Moore, she made it through the leaky pipeline as an associate because of mentoring from Cravath's chair and other partners. As she stated in McQueen's article, "I had the benefit of having partner mentors while I was an associate" and "those mentors didn't look like me." However, their mentorship allowed Hernandez to navigate the pathway to partnership.

What is mentoring at a law firm for diverse associates? How can it be implemented? What does it address, and what are the benefits? As Margaret A. Costello stated in her March 2007 article,
"Retaining Diversity Through Mentoring: Theory and Practice,"

[m]entoring in the legal profession has been described as, "the means by which the legacy of intergenerational excellence is bequeathed. It involves a uniquely qualitative dimension by which the mentee acquires not just the science but the elusive art of lawyering. It is how one learns the unwritten but often outcome dispositive protocols of the profession."

Mentoring can be a formal or informal process and done in an individual or group setting. Mentoring requires the mentor to evaluate his or her strengths and weaknesses, what knowledge he or she can offer to the mentee, and how that knowledge can be used to promote the mentee's professional development, growth, and visibility in the firm and legal community. In short, mentors are facilitators who weave the diverse associate into the fabric of the firm and act as the bridges that link and join the diverse associate to the firm's culture.

Success requires recognition, leadership, and support from the firm's upper management through coordination and oversight of the firm's diversity mentoring program. Many firms have a clearly stated goal to mentor their diverse associates. The more difficult task is the implementation and execution of the mentoring goal through an actual plan for the diverse associate. Matching partners to associates and advising the associates of the mentoring group is only part of the task. The heavy lifting comes with ensuring that the mentors and mentees are actually interacting. This can be accomplished by requiring the mentor to develop a plan with the mentee and periodically report their activities to firm management with respect to the interactions and the progress made by the associate.

Mentors provide career advice, support, feedback, access to information, and direction. As a result, mentoring requires an attorney's most valued asset: time. For the mentoring relationship to be successful, the mentor must invest his or her time and become a stakeholder in the diverse associate's career development. In the early stages, investment in the mentoring relationship requires the commitment by the mentor and mentee to attend regular meetings with the purpose of creating a plan or developing a road map for the mentee's progress and success. As the professional relationship develops, confidence and trust develop as well. In addition, it is critical that the mentor identify any problem areas and assist the mentee in resolving them. As an example, a formal mentoring relationship may involve strengthening a specific skill or skill set, such as writing. A mentor may meet with the diverse associate on a weekly basis to review specific assignments and provide constructive feedback and suggestions for improvement. Later, as the mentoring relationship matures and the diverse associate becomes a more senior associate, mentoring may be as informal as meeting for lunch once a month to act as a sounding board, providing advice, and making sure that the mentee's career is on track. The investment of time by the mentor and mentee will pay off for the firm by developing an attorney who meets the firm's and clients' expectations.

The goal is to have the mentor/mentee relationship develop to a point where the mentor sponsors the diverse associate for quality work assignments and other opportunities inside and outside the firm. Many attorneys, prior to becoming partners, had an advocate within the partnership looking out for them. Likewise, sponsors commit to take specific steps for their associates. However, this need not involve more effort than they would expend for any associate they have organically mentored in the past. When acknowledged by the firm's leaders, this form of sponsorship increases the likelihood of retention of diverse attorneys.

Another benefit of mentoring is that it is a mechanism to identify, confront, and eliminate the effects of unconscious or implicit bias. As defined in Helping Courts Address Implicit Bias: Frequently Asked Questions (2009), written for the National Center for State Courts, implicit bias is

the bias in judgment and/or behavior that results from subtle cognitive processes (e.g., implicit attitudes and implicit stereotypes) that often operate at a level below conscious awareness and without intentional control. The underlying implicit attitudes and stereotypes responsible for implicit bias are those beliefs or simple associations that a person makes between an object and its evaluation that ". . . are automatically activated by the mere presence (actual or symbolic) of the attitude object" (Dovidio, Gaertner, Kawakami, & Hudson, 2002, p. 94; also Banaji & Heiphetz, 2010). Although automatic, implicit biases are not completely inflexible: They are malleable to some degree and manifest in ways that are responsive to the perceiver's motives and environment (Blair, 2002).

We all have implicit biases, and it is naïve to think that we do not. However, most people are not consciously aware that they hold biased attitudes because those attitudes develop over time with the accumulation of personal experience. The experiences include traditional learning experiences and social learning experiences that build on one another and form the framework of our decision-making processes. Mentoring assists the mentor and mentee in identifying and addressing these biases while incorporating the mentee into the firm's culture. The process also helps to identify unintentional and unrecognized biases and small micro-inequities for the firm and allows a mechanism to address them by promoting a more inclusive work environment. By doing so, the retention rates for not only diverse associates but all associates should improve.

The benefits to the firm from a successful mentoring program are more than a better working environment that may lead to greater productivity. Mentoring of diverse associates provides the opportunity for increased business and the eventual return on the firm's investment. As we know, law firms do not manufacture widgets. Our valuable assets are our people. Firms thrive on their attorneys' abilities to provide the highest quality work, resolve clients' problems, and foster the relationships to continue and develop new business. To provide the top-level services that our clients demand, diverse associates who are mentored and incorporated into the firm's culture are more capable to provide the return on the investment and remain at the firm.

This is especially true in a commercial litigation practice. The clients are sophisticated and many have internal and external diversity initiatives. Requests for proposals often include a section with respect to the diversity efforts and programs at the firm and the diversity of the attorney team making the proposal. Therefore, a firm has a competitive advantage or is not at a competitive disadvantage when competing for business from these clients. Further, commercial litigation practices normally work in teams. The team provides services to the clients on a continuous basis, and the clients get to know and interact with their attorney team. Retaining the attorneys, including the diverse attorneys, on the team provides the potential for stronger client bonds in a competitive marketplace. Finally, retaining attorneys is more economical than continually retraining new attorneys. Accordingly, in many respects, mentoring for the retention of diverse attorneys is the right thing to do.

Keywords: litigation, commercial, diversity, mentoring, retention, hiring, leaky diversity pipeline, mentor, mentee, implicit bias

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).